HC Deb 18 October 1982 vol 29 cc175-97

Interpretation

1. In this Schedule— the Act of 1949" means the Representation of the People Act 1949; mental hospital" means any establishment maintained wholly or mainly for the reception and treatment of persons suffering from any form of mental disorder; voluntary mental patient" means a person who is a patient in a mental hospital but is not liable to be detained there by virtue of any enactment.

Registration of voluntary mental patients

2. —(1) Subject to sub-paragraph (2) below, a person who on the qualifying date is a voluntary mental patient shall not be entitled to be registered as mentioned in section 8(1) or (2) of the Act of 1949 except in pursuance of a declaration made with reference to that date in accordance with paragraph 3 below.

(2) Sub-paragraph (1) above is without prejudice to the registration of a voluntary mental patient by virtue of his residence at an address other than the mental hospital in which he is a patient in any case in which he would be entitled to be so registered apart from this Schedule.

Patient's declaration

3. —(1) A voluntary mental patient may make a declaration under this paragraph (a "patient's declaration") if he is able to do so without assistance.

(2) A patient's declaration shall be made with a view to registration in the register of electors for a particular year and with reference to the qualifying date for that register.

(3) A patient's declaration shall be made during the twelve months ending with the qualifying date by reference to which it is made but shall not have effect if after it is made and before that date the declarant ceases to be a voluntary mental patient or cancels the declaration.

(4) A patient's declaration may be made by a declarant notwithstanding the fact that by reason of his age he is not yet entitled to vote.

(5) A patient's declaration shall state that it was made by the declarant without assistance and—

  1. (a) the date of the declaration;
  2. (b) that on that date and, unless it is the qualifying date, on the qualifying date next following the declarant is or will be a voluntary mental patient;
  3. (c) the address of the mental hospital in which the declarant is a voluntary mental patient;
  4. (d) the address where the declarant would be resident in the United Kingdom if he were not a voluntary mental patient or, if he cannot give any such address, an address (other than a mental hospital) at which he has resided in the United Kingdom;
  5. (e) that on the date of the declaration the declarant is a Commonwealth citizen or a citizen of the Republic of Ireland; and
  6. (f) whether the declarant had on the date of the declaration attained the age of eighteen year and, if he had not, the date of his birth.
(6) A patient's declaration shall be attested in the prescribed manner.

(7) If a person makes a patient's declaration declaring to more than one address, or makes more than one patient's declaration bearing the same date and declaring to different addresses, the declaration or declarations shall be void.

(8) A patient's declaration may at any time be cancelled by the declarant and, subject to sub-paragraph (7) above, a patient's declaration bearing a later date shall, without any express cancellation, cancel a declaration bearing an earlier date if it is made with reference to the same qualifying date.

(9) In this paragraph "assistance" does not include assistance necessitated by blindness or other physical incapacity.

Effect of patient's declaration

4. —(1) A voluntary mental patient whose patient's declaration is made with reference to the qualifying date for any register shall be treated in relation to that register—

  1. (a) as resident on the qualifying date at the address specified in the declaration pursuant to paragraph 3(5)(d)above;
  2. (b) in the case of registration in Northern Ireland, as resident in Northern Ireland during the whole of the period of three months ending on the qualifying date; and
  3. (c)in any case, until the contrary is proved, as being a Commonwealth citizen or a citizen of the Republic of Ireland of the age appearing from the declaration and as not being subject to any legal incapacity except as so appearing.
(2) Where a patient's declaration appearing to be properly made out and attested is transmitted to the registration officer in the proper manner, the declarant shall, until the contrary is proved, be treated for the purposes of registration as having been from the date of the declaration or such later date, if any, as appears therefrom, and as continuing to be qualified to be registered as an elector.

Local government elections

5.—(1) Subject to sub-paragraph (2) below, no patient's declaration shall be specially made by any person for the purpose of local government elections but any patient's declaration made for the purpose of parliamentary elections shall have effect also for the purpose of local government elections.

(2) A patient's declaration may be made for the purpose of local government elections only by any person who is a peer subject to a legal incapacity to vote at parliamentary elections and, where so made, shall be marked to show that it is available for local government elections only but shall in all other respects be the same as any other patient's declaration.

Offences

6. Section 49 of the Act of 1949 shall have effect in relation to a patient's declaration as it has effect in relation to a service declaration, taking the reference to subsection (2) of section 10 of that Act as a reference to sub-paragraph (1) of paragraph 3 above and the reference to the particulars required by regulations under that section as a reference to the particulars required by sub-paragraph (5) of that paragraph.

Voting by post

7.—(1) A person who is registered by virtue of a patient's declaration may vote by post if he applies to be treated as an absent voter and furnishes an address in the United Kingdom to which a ballot paper is to he sent for the purpose.

(2) The application shall be for a particular election only.

(3) An application to be treated as an absent voter by virtue of this paragraph shall be made to the registration officer and shall be allowed by him if he is satisfied that the applicant is, or will if registered be, entitled under this paragraph to vote as an absent voter.

Supplementary

8. This Schedule and the Act of 1949 shall have effect as if this Schedule were contained in Part I of that Act.'. Sub-amendment(a), in paragraph 3(1), leave out if he is able to do so without assistance". Sub-amendment(b), leave out paragraph 3(9).

Sub-amendment(c), leave out paragraph 7(2).

Government amendment No. 95.

Mr. Mayhew

These amendments give effect to the Standing Committee's decision that patients in psychiatric hospitals should no longer be prevented from registering as electors solely because they have no place of residence outside the hospital. They do so by enabling a voluntary patient resident in a mental hospital on the qualifying date for electoral registration to make a declaration which entitles him to be registered as an elector for an address outside the hospital and to obtain an absent vote at an election.

The electoral registration of mental hospital patients is a long standing problem in our electoral law. The Representation of the People Act 1949 provides that a person who is a patient in a mental hospital shall not be treated as resident there for the purpose of registration as an elector. Many patients have what is described as "constructive" residence at their home address, and the form which is delivered to householders each autumn contains instructions to include the names of voluntary psychiatric patients who are temporarily away from home. But there are patients in mental hospitals who have no home address where they can be registered. They may be mentally capable of voting, but the 1949 Act prevents them from being registered at the hospital, and if a person is not registered as an elector he cannot vote.

Mr. Speaker's Conference of 1973–74 recommended that, for the purpose of electoral registration patients in mental hospitals should be put on the same footing as general hospital patients, who can be registered as electors in the usual way. But successive Governments have failed to implement the recommendation, perhaps because they have not been able to resolve the substantial practical difficulties involved. An interdepartmental working party was set up to decide the arrangements which would be needed to bring the recommendation into effect. However, when it reported in 1978, the working party did not put forward single or conclusive recommendations on all the issues involved.

The central problem has always been who should decide a patient's capacity to vote. No one can be registered as an elector if he suffers from a legal incapacity, and the common law disqualifies from voting those who are called idiots and persons of unsound mind. That is hardly ar up-to-date categorisation.

An electoral registration officer, faced with a list of patients resident in a mental hospital, must know in practice that some of them are disqualified at common law. If he includes the whole list in the register, he faces acrimonious and hurtful challenges to some of the names he has registered. But who can advise him on who should be left out? Doctors do not want this task. They have argued that it is no part of their job to offer that sort of advice. We have sympathy with them.

There is another practical factor. Many psychiatric hospitals are of a considerable size—a thousand beds and more. If patients were given the right to vote in the area where the hospital is situated, this could lead to a sudden large increase in the electorate in that area. This is naturally viewed with apprehension by local communities. Mental patients will inevitably be to some extent isolated from day-to-day life. We cannot expect them to take a full part in local affairs. Yet the votes of a thousand or so patients could exercise a disproportionate influence, particularly at local elections. The right to cast them could cause resentment in a field where all want to see fears broken down and not exacerbated.

Mr. Christopher Price

I admire the prose in which the Minister's speech is cast. Has he any evidence, however, that mental patients vote in a pattern that is in any way different from that of the population at large?

Mr. Mayhew

I am speaking of the fears and understanding of local communities. In making this kind of change in response to an amendment carried in a mental health Bill, which it would have been much easier to seek to overturn, everyone must have regard to practical realities. We are seeking to give effect to the spirit of the amendment while taking into account practical consideration such as those to which I have referred.

The need to give mental hospital patients the right to vote has been raised several times during the earlier stages of the Bill, both here and in another place. The Government's view has been that a mental health Bill is not the best vehicle for a change of this kind, which, as a constitutional measure, should go through all its stages on the Floor of the House. But we have listened carefully to the arguments which have been put forward in Committee. On the one hand, it is obviously unjust that a person should be deprived of a vote not according to how he is but where he is. On the other hand, it is unjust and undesirable that a community should be exposed to the influx of votes, especially in local elections to which I have referred. Until now, no solution has been found to the practical problems that would have to be resolved before the change is made.

There was a full discussion in Committee, which decided to add a new clause, now clause 59, deleting from section 4(3) of the 1949 Act the words that prevent a mental hospital patient from using his hospital address to register as an elector. That clause is technically defective because it fails to deal adequately with amendments to the 1949 Act under Scottish and Northern Ireland mental health legislation. The Committee may also inadvertently have given the vote to detained patients, though that was clearly not its intention, and, as far as I am aware, no one has ever argued for that. Indeed, it was expressly disavowed in Committee. So a change has to he made.

Although the Government advised the Committee not to accept the new clause, we have looked at the issues again and the proposed amendments represent a fair resolution of the problems involved in giving effect to the principle behind the Committee's decision. By far the simplest course would have been to delete clause 59. It was because we felt that the position established by the 1949 Act gives rise to injustice that we determined to wrestle with the problems of balancing the interests of the voluntary patient in being able to vote against the need of the community that the right should be sensibly conferred. In formulating our proposals we have consulted closely with MIND and those who led the representations on its behalf in Committee. We have been grateful for their help, and I acknowledge in particular the help of my hon. Friend the Member for Abingdon (Mr. Benyon) and the hon. Member for Lewisham, West (Mr. Price).

Our amendments replace the existing common law tests in the case of voluntary patients with the simple practical test of an individual's ability to make a declaration. They provide further that a patient is registered as an elector not in the constituency or electoral area where the hospital is sited, but at the address at which he would be resident if he were not resident in hospital or, if he cannot provide that, any address at which he has previously resided.

The system is set out in detail in the new schedule. A voluntary patient may make an annual declaration if he is, or will be, resident in a mental hospital on the qualifying date for electoral registration. He must have the mental capacity to make the declaration without assistance, but people who need assistance because of some physical incapacity such as blindness will be able to seek help in filling out the form.

The declaration will specify the address outside the hospital at which the patient is to be registered as an elector. Normally this would be the patient's home address, the address of his family, but patients who have no home address will be able to declare an address at which they were resident before admission or, if necessary, they will be able to declare the address to which they expect to be discharged—for example the address of a hostel. We have deliberately drawn the provision widely enough to ensure that no voluntary patient will be deprived of a vote because he cannot supply an address. The declaration will be attested by a member of the hospital staff and transmitted to the electoral registration officer in the patient's constituency. Once a patient's name is included in the register he will be entitled to apply for a postal vote at election time. It will be open to a patient to ask the electoral registration officer for a postal vote at each election for which he is entitled to one while the register is in force.

The Home Office and the DHSS will consult the political parties, electoral registration officers and health authorities on the regulations that will prescribe the manner in which the declaration is to be attested and transmitted to EROS, on the form of the declaration, which we intend shall be as simple as possible, on the content of the guidance given to EROs and hospital authorities, dealing, for example, with the addresses that can be specified, and on the extent to which a patient can be provided with assistance and with related practical matters such as the elector's right to receive an election address.

The regulations will be subject to affirmative resolution, and we hope to bring draft regulations before Parliament in good time for the commencement date for the provisions of 1 April 1983.

We believe that these amendments offer a simple, yet effective, solution to a problem which no previous Government have been prepared to tackle. They do not produce a structure which is entirely free of anomaly—that is conceded—but the voting arrangements for Service men already are anomalous. However, it is not for nothing that the 1949 Act was expressed as it was, nor that the recommendations of Mr. Speaker's Conference have remained hitherto neglected since 1973. These proposals have been formulated with regard to the need for general acceptance in the country—in other words, with an eye to reality. They will give the vote to thousands of people who for many years have been without it, not because of their mental state but because of their address. This is a long overdue change, and it is entirely in keeping with the spirit of the Bill. The amendments have been welcomed by MIND as a great step forward, and I believe that that view will be shared by all who have sought a change in the law. I hope that the amendments will be supported on both sides of the House.

3.30 am
Mr. Alfred Morris (Manchester, Wythenshawe)

The hour is late, but I am sure that the House will agree that the issues at stake in this very sensitive debate are important enough to merit our concern at any hour of the night.

I was not a member of the Standing Committee. This is thus my first intervention in the debates on the Bill. I pay warm tribute to those who served on the Committee—not least my hon. Friend the Member for Birmingham, Stechford (Mr. Davis)—for having worked so hard to improve the Bill. By their efforts, they have given hope of a greater sense of dignity for patients in mental hospitals.

The Government's alternative to clause 59 consists of two main points. First, a substantive alteration to the Representation of the People Act 1949 in amendment No. 80, and secondly, a schedule setting out the details in amendment No. 91. It is the schedule, as Rolf Hermelin of the National Society for Mentally Handicapped Children and Adults said to me yesterday, that is so deeply objectionable. Rolf Hermelin, who is highly respected on both sides of the House for his knowledge of and dedication to the interests of mentally handicapped people, writes: Paragraph 3, sub-paragraph 5(d)of the new schedule appears to me as being deliberately designed to put as many obstacles as possible in the patient's path to the polling box. We all know that many voluntary patients cannot remember their last residence, nor are they in a position to give an an address where they would be resident if they were not a voluntary patient. [Interruption.]If the hon. Member for Plymouth, Sutton (Mr. Clark) cannot behave himself and take an interest in what is clearly a very sensitive debate, he would do better service to his constituents and the House by leaving the Chamber.

The strongest argument against "the patient's declaration" is the fact that patients with mental disorders of precisely the same nature in a psychiatric ward within a general hospital are entitled to vote without such a declaration under present legislation. As Rolf Hermelin's comment today continues: To me it is utterly illogical to treat a patient differently in this respect just because he or she happens to be in a 'mental hospital' voluntarily". I hope that few—if any—right hon. and hon. Members will want to ignore that statement. Even at this late stage, I hope that the Minister will respond to the force of what is an unanswerable argument.

What seems to actuate the Government now is a desire to disperse the votes of voluntary patients in mental hospitals. They are concerned about the effect of registering a large number of new voters at one place. Their fear, presumably, is that it could have a major effect on local elections in some areas. The Minister said as much in his speech. Voluntary hospital patients could even, it is feared, comprise the majority of the electorate in some localities. But would it not be a good thing to have at least some local public representatives who must specialise in the problems and claims of hospitalised disabled people and those who look after them?

In Committee, the Under-Secretary of State did not even attempt to deal with the question why a patient in a mental hospital should be treated differently, as to voting rights, from a patient in a psychiatric ward of a general hospital. In truth, of course, there is no logical answer. Nor is there any semblence of equity in treating the two people differently. The patient in the psychiatric ward of the general hospital could, if he or she wished, be registered from there, so why should the voluntary patient in a mental hospital be forced to register from an address outside the hospital? It is sometimes pot luck whether a patient goes to a psychiatric ward in a general hospital or to a mental hospital. How, then, can the Minister possibly justify the difference in treatment proposed in amendment No. 91?

The deeply unfortunate consequence of amendment No. 91 is that some voluntary patients in mental hospitals cannot vote at all, since although they are living voluntarily in hospital and they are free to leave at any moment of their choosing, they have nowhere else to go and thus no meaningful home address outside the hospital from which to register as an elector. That makes the amendment a wholly discriminatory and unacceptable proposition. In the words of the Government's consultative document onCare in the Community: There are many people [in mental hospitals] who would not need to be there if appropriate community services were available. Yet in the 15 months since that document was published, community services have become more and not less difficult to provide, entirely because of the Government's relentless pressure to cut local public spending.

In a strikingly impressive article inThe Guardiantoday—entitled "The cash limits of a caring community"—Hugh Herbert points to the yawning gap between precept and practice when it comes to providing real community care. He quoted Tony Hammond, who runs a charity housing association for the provision in Southampton of group homes for psychiatric patients, as saying that: …despite all the talk about community care, the community is not caring. What we are talking about are people who are lonely, bored, friendless, without families, and impoverished. More than 40,000 adults and 3,000 children live in long-stay sub-normality hospitals. The Government say that 15,000 of them could be transferred to homes within the community, but no extra resources are being made available to provide adequate and comprehensive community care. Indeed, the reverse is true. They are making community care more and more difficult to provide.

Of all the groups that are denied a voice in our society, the mentally disabled still have the stiffest obstacles to overcome. They have historically been among the most devalued, neglected and abused groups in society. In the House even today we saw that public attitudes towards them are not only less informed but suspicious and at times even hostile. The mentally disabled are almost always deprived of the right to express opinions and to participate in making, let alone taking, decisions about their lives. Surely there can be no better way to help voluntary patients in hospitals achieve fuller citizenship than to vouchsafe to them the right to vote.

In Committee the Minister admitted that the present position was indefensible. He said: The present position is an anomaly of electoral law, and it is a piece of electoral legislation that should be used to change it. Against that there was agreement on both sides of the Committee that the rights of citizenship should come before making legislation neat and tidy.

I do not wish to criticise the Minister, because he is a feeling and thinking man. I recall his desire to improve access to polling stations for physically disabled people when I was a Minister between 1974 and 1979. There was a ready response from the Labour Government and many disabled people were helped in his and other constituencies. The Minister first approached me at the DHSS. I discussed the issue with my hon. Friend the Member for Halifax (Dr. Summerskill), then a Home Office Minister, and the problem was quickly resolved.

I hope that the Minister will not protest too much at my hon. Friends in Committee who said that helping disabled people to achieve fuller citizenship concerned not only Home Office Ministers.

The amendment agreed in Committee, now clause 59, was a triumph for all-party co-operation against a blatant appeal to party loyalty. The Minister told his hon. Friend the Member for Abingdon (Mr. Benyon), who had just made it clear that he was thinking of voting for the amendment moved by the hon. Member for Newcastle upon Tyne, East (Mr. Thomas): I hope that he will at least take it from me, that one thing that ought to make him suspicious was the unanimity of 'Hear, hear' from Opposition Members when he made his speech."—[Official Report, Special Standing Committee, 22 June, 1982, c. 692–3] What sort of argument is that in a debate about citizenship and issues of principle?

Now that it is conceded that my hon. Friends and the hon. Member for Abingdon were right in Committee and that the Bill is as good a vehicle as any for ending the anomaly, the Government seek to make it as difficult as possible for voluntary patients to vote. Instead of retreating gracefully from the ground that they failed to hold in Committee, they still want to discriminate against voluntary patients arid to perpetuate an illogicality.

Amendment No. 91 strains the very meaning of registration as a parliamentary elector. A basic criterion for entitlement to register as a parliamentary elector is residence. There are complications, but "residence" means where a person lives. For many of the people whom we are considering in this debate that is hospital. I hope that the Government will think again. They are piling handicap on handicap by the requirements in amendment No. 91. They know that to be so and deserve strong criticism from the House.

Mr. Tom Benyon

The issues have been dealt with exhaustively. I listened with interest to the contentious and acrimonious brief read by the right hon. Member for Manchester, Wythenshawe (Mr. Morris). He said that the Government were acting in an indefensible, discriminatory and unacceptable way. I was largely responsible for the amendment being passed and I do not regard it as discriminatory or unacceptable. The Committee stage was conducted with unusual harmony and with a welcome attempt by both sides to get it right.

I very rarely do so, but I should like to pay great tribute to the Ministers who played a major part in that Committee for the patience, tolerance and humour with which they faced considerable difficulties from both sides. A good example of this patience, tolerance and humour is symbolised by the way in which they have dealt with this amendment.

3.45 am

The amendment is liberal. It has granted further freedom to people in psychiatric hospitals and has increased their status. If someone is in such a hospital there is no greater humiliation, in addition to all the other problems, than to have one's vote taken away. The Government have improved what we originally set out to do. What we originally set out to do had disadvantages. All of us here are practical politicians, but the idea of people canvassing psychiatric hospitals stuck in my craw. The Government have got us out of that considerably embarrassing temptation. There is no perfect way to sort out this anomaly and I concede that the Government are correct. The Representation of the People Act would have been a more suitable vehicle than the Mental Health (Amendment) Bill. Nevertheless, having been in the House for three and a half years, I took the opportunity of righting an anomaly when it struck me that the arguments for righting the anomaly were compelling. The Government have acted most imaginatively. What we have is highly satisfactory. I concede that it is not perfect and there are people who are bound to nit-pick. If we are, at the hour of 3.46 am, to turn the imaginative and helpful way in which the Government have treated this into an acrimonious debate, I can only say that I, for my part, would deplore it.

Mr. Mike Thomas

I rise to support the comments of the hon. Member for Abingdon (Mr. Benyon) I hope that he will not feel that I am diluting the credit that is due to him for the courageous course that he took in Committee if I remind the House that the amendment was originally tabled by me as a new clause. It is a little odd for the official Opposition to be complaining so bitterly about these matters when they did not bother at any point in the proceedings to table an amendment or a new clause to deal with the matter. Indeed, had I not tabled such a clause we would not be here debating this matter this morning. It comes ill from hon. Gentlemen who did not serve on the Committee to introduce a flavour and tone to these proceedings that we have not seen from the beginning of the Bill. It is typical of the worst aspects of the two-party arrangements in the House. The retreat, by those who have not been subject to the amelioratory procedure of our Committee, into that type of two-party warfare will, I am sure, not be reciprocated by those on the Government Benches because they also had the benefit of taking part in the Committee stage.

The right hon. Member for Manchester, Wythenshawe (Mr. Morris) should take seriously what the Minister referred to somewhat obliquely, but nevertheless accurately, as apprehensions. There are apprehensions about this matter and when the Minister kindly agreed to meet me to talk about the ways in which we might secure agreement across the Floor of the House on this matter, I was more than conscious of the apprehensions of what he calls local communities. I am not sure that it is in order to refer to hon. Gentlemen and local councillors as local communities, but perhaps we may pass over that gloss.

It is reasonable for Ministers, particularly a Home Office Minister responsible for Representation of the People Act matters, to come to the House to point out that there are apprehensions in this matter, because clearly there are. I believe that he has taken a sensible course to try to deal with them. I accept that what the Minister proposes achieves the objectives that I sought and spelt out in Committee. I thank him for doing me the courtesy of seeking to see me and asking me to spell out what my objectives were so that he could be clear about what I was talking about in moving the amendment.

Mr. Alfred Morris

In Committee the hon. Member for Newcastle upon Tyne, East (Mr. Thomas) made a very strong point of his opposition to treating differently voluntary psychiatric patients in mental hospitals and those who find themselves in the psychiatric wards of general hospitals. I have quoted today the very distinguished view of Rolf Hermelin of Mencap.

He was the person who argued against the illogicality of amendment No. 91. It was Rolf Hermelin who argued that the amendment was dicriminatory. How does the hon. Gentleman square what he is saying now with his very strong insistence in Committee that there should not be any difference in treatment between those who are in the two types of accommodation?

Mr. Thomas

Like the right hon. Gentleman, it is clear that Mr. Hermelin does not know how to quit when he is ahead. I believe that the Government's proposals will achieve as much as we can reasonably expect. We shall be making a long-overdue advance in the civil rights of long-stay patients in hospitals. It is a major advance that is of critical importance to many. It is right to make the advance in a way that does not cause apprehension elsewhere. I believe that the Government have gone as near as we can reasonably expect them to go in finding a solution to the problem.

The right hon. Gentleman has raised a narrow point to which sub-amendments(a)and(b)are directed. I sympathise with his concern but I do not support the amendments of the hon. Member for Birmingham, Stechford (Mr. Davis). If we are to go down the road that the Minister proposes, which I advocate doing, it is right that there should be a simple test. It is not reasonable to say that long-stay patients in a psychiatric hospital are exactly the same as those whom we have no reason to believe may be mentally ill or handicapped. Clearly they are not exactly the same. The minimal discrimination—I suspect that when the Minister replies it will transpire that it is not as much as even the right hon. Gentleman would like to suggest it is, and it is pretty minimal in reality—that will exist is a small price to pay for the advance that we are making. I believe that it is a price that we should be more than willing to pay. We should not be carping and criticising. We should be saying "Thank goodness that at long last someone has taken the trouble"—it must have been considerable trouble bearing in mind all the difficulties that are involved—"to try to get this right."

Subparagraph (9) deals clearly with the problems of blindness and physical incapacity. It would be wrong for those who are in some way physically unable to complete the test to be disbarred, and the Minister has dealt with that. To expect the result that would be produced by sub-amendments(a)and(b)is to be unrealistic and to undermine the means by which the Minister is hoping to make progress.

I am not clear about sub-amendment(c), which seeks to enable patients who qualify under the provisions now being made to secure a postal vote for a substantial period rather than for one election. I am not clear how that relates to the necessity for the patient to take the test every year to get on to the electoral roll every year. If a patient is taking a test every year to get on to the electoral roll every year, there is not much purpose in stopping him having a postal vote on a continuing basis—in other words, making him continue to apply for a postal vote. Perhaps the Minister will explain the reasons behind that. For the moment I have an open mind on the issue.

As I have said, this is a major achievement. The Government made a slightly shaky start but they have done extraordinarily well. I support them and thank them for what they have done. I wish we had a little less carping from the Official Opposition.

Mr. Ennals

I do not want to follow the slightly partisan approach of my right hon. Friend the Member for Manchester, Wythenshawe (Mr. Morris), nor to be as combative as he is. We should congratulate the hon. Member for Newcastle upon Tyne, East (Mr. Thomas), who raised this matter in Committee. The hon. Member for Abingdon (Mr. Benyon) said that he was not convinced by the hon. Gentleman. It required even my wisdom to finally convince him. It is probably the only time that I have convinced a Conservative Member to do anything.

Mr. Tom Benyon

That is a figment of the right hon. Gentleman's imagination.

Mr. Ennals

The Government are entitled to credit for deciding to include the amendment in the Bill, when it seemed in Committee that they would try to remove it. We should bear in mind that it was a recommendation of the Speaker's Conference more than 10 years ago and that the Government of which I was a member did not bring in the change in any legislation.

The solution is not satisfactory. As the problem has been before the House for more than a decade, we should get the solution right. It is not up to any of us to determine who has the intelligence and judgment to vote. People who have been mentally ill or who are mentally handicapped but live in their houses have the vote. We may think that they are not capable of passing a judgment, but we do not say that. Those who live anywhere can vote in one way or another.

My objection to the proposal is that we still will leave a significant number of people—it may run into tens of thousands—whom we are seeking to enfranchise but who will not be enfranchised. I have met some of the people who live in long-stay hospitals, some for over 40 years—most of their lives. They may remember where they used to live--for example, No. 2 Buckingham Street, Liverpool SW3, which was pulled down years ago. It would be a bogus address if those people were to put it on the electoral register. The address might be that of a house in which someone else now lives, who may find that someone has put his own name on the register and has the right to vote, which would cause alarm and concern to the person who still lives in that house.

The amendment is chock full of anomalies, which are created because the House seems not to be prepared to accept the recommendations of the Speaker's Conference. It was the wish of the Speaker's Conference that someone whose only residence was a hospital should be entitled to call that hospital his residence, in precisely the same way as tens of thousands of elderly people who live in old people's homes run by local authorities or voluntary organisations register that home as the place where they live.

The hon. Member for Abingdon may find it embarrassing to canvass in old people's homes, where many old people, because of their age and senility, are not wise enough to understand the hon. Gentleman's fluency, but I do not find it embarrassing. I would not find it embarrassing in a hospital. Hospitals are getting smaller. That is one of the good things. More people are moving into the community. But a substantial block of people is left whose only residence is the hospital where they are living and will probably live for for the remainder of their lives.

4 am

I am not part of the magic circle. I congratulate the Minister on the consultations. Doubtless the hon. Members for Abingdon and for Newcastle upon Tyne, East were consulted. Even MIND was brought in, although Mencap was not. L do not complain that I was not, but having seen what is on the Order Paper I have the freedom to criticise it. I want the Government to think again.

Mr. Mike Thomas

Before the right hon. Gentleman gets carried away with paranoia, let me say that I had a discussion with the Minister to apprise him of my views. I was not consulted on the content of the schedule and felt free to criticise it had I wished to do so.

Mr. Ennals

I resent the accusation of paranoia.

Mr. Thomas

It was light-hearted.

Mr. Ennals

I have spent many years working in the field of mental health and visiting hospitals for the mentally sick and handicapped. I have spent much of my life trying to get such people out into the community, often with success.

There is no earthly reason why the Minister should consult a former Secretary of State, but I enjoy the freedom to criticise this botched job.

It will not be difficult for the Minister to get it right. I assume that the Bill will reappear in another place. He should accept that :'or people who have no other residence the hospital should be recognised for the register in the same way as the old people's home. I do not believe that hon. Members who have supported him would feel that he had betrayed what they had asked him to do.

Mr. Christopher Price

It is late and I am not paranoiac about the amendments.

The amendments are not the end of the day. They are not satisfactory. They still leave anomalies and a system of registration that is not satisfactory for voluntary patients. I believe, like MIND, that when a Government of either colour introduce a proper representation of the people Bill to clear up the many electoral law anomalies, we must reconsider the issue and overcome the irrational fear about what is known as swamping, although the word has received unhappy connotations in the past year or so. I repeat that there is no evidence that mental patients are more likely to vote Labour, Conservative, Social Democrat or Liberal, or in any pattern other than that of the population at large. The fear of swamping is unreal. We must put down a marker so that when the time comes to tidy electoral law, this element will be cleared together with other anomalies.

On the other hand, I am a realist. I was surprised at and grateful for the fact that the hon. Member for Abingdon (Mr. Benyon) voted with the Opposition. Perhaps, to some extent, he was persuaded by my eloquent speech in Committee, although there may have been some other reason. He was brave to do so with the Whips, Ministers and even the functionaries glowering at him. The Government faced a problem that had to be solved before the Bill reached Report stage. I pay tribute to them for their efforts to solve the problem.

I admit that Governments, either Labour or Conservative, might have solved the problem simply by reversing the Committee decision on Report. But the Government decided not to do so, and took a real step forward in trying to find a way to enfranchise a large number of people who should have the vote. There is absolutely no reason why they should not have it.

I am worried about the phrase in paragraph 3

if he is able to do so without assistance". I know many people in old people's homes, geriatric hospitals or who live on their own, who need assistance to fill in their postal vote forms. Sometimes their candidates help them, and I plead guilty to assisting a number of elderly persons.

To be fair, I do not think that the Minister wishes to put mental patients at any greater voting disadvantage than the voter at large. Can the Minister say a little more about how he interprets the meaning of "without assistance" and how he intends to consult about the regulations and advice given by the Government to hospitals on how to interpret the words "without assistance"? That would help me to vote later.

I regard this set of amendments as a bonus. I never expected it. As a realist, I think that we should be grateful for small mercies. The amendment represents a genuine step forward. Although, when the time arrives, the Opposition will wish to improve the provision, there is much to be said for accepting it in its present form if we can obtain the right assurances from the Minister about the meaning of "without assistance".

Mr. Terry Davis

I am beginning to think that I was the only person who voted for the new clause in Committee who does not want to claim credit for it. It was carried by seven votes to six. I approached that debate with an open mind, and cannot claim credit for putting the new clause forward. I went to the Committee without any preconceived opinions. I had not made up my mind about how to vote. I listened to the debate, was persuaded that the case put forward, particularly by the hon. Member for Newcastle upon Tyne, East (Mr. Thomas), was a strong one and voted for the new clause.

As the hon. Gentleman seems to be concerned about taking credit for the new clause, I should point out that it was signed by several of my hon. Friends. He cannot know whether another hon. Member would have tabled a similar new clause had he not got in early in our Committee proceedings.

Mr. Mike Thomas

From what the hon. Gentleman has just said, I can be quite clear that he would not have done so.

Mr. Davis

Absolutely. I listened to the debate in Committee and was persuaded by the arguments put forward by the hon. Gentleman. Almost all my hon. Friends went into the Committee with their minds made up and voted to extend the franchise to mental patients regardless of the debate. I give the hon. Gentleman all the credit that he seeks for tabling the new clause.

The major reason why I voted for the hon. Gentleman's new clause was the poor Government argument in opposition to it. In no way do I criticise the Under-Secretary, who coped well with a poor argument. He said that it was improper to use a mental health Bill to effect a constitutional change. He advanced the novel constitutional doctrine that we could not deal with this subject in a mental health Bill, that a Bill was the property of a Department, that this Bill was the property of the DHSS and that this subject should not be included as it was the responsibility of the Home Office. However, several other issues in the Bill could be described as Home Office matters.

After the result in Committee, the Government considered their position, accepted the decision and have come forward with these amendments, but I regard their conversion as less than wholehearted. The hon. Member for Newcastle upon Tyne, East and the hon. Member for Abingdon (Mr. Benyon) are satisfied that the Government amendments give effect to what they wanted in Committee. The hon. Member for Newcastle upon Tyne, East has been especially firm in that regard, but he must not complain if other hon. Members take a different view.

My concern is twofold, but I should point out that the amendments affect detained patients as well as voluntary mental patients. In Committee it was clear that it was not our intention to give the vote to detained patients. To that extent, the Government's proposals reflect the views of the Committee. I support amendment No. 80, which makes it clear that we are drawing a distinction between detained patients and voluntary mental patients.

Nevertheless, I must draw attention to the fact that in amendment No. 80 we might be taking away the vote from some people who have it at present. It is possible for people to be detained in the psychiatric unit of an ordinary hospital. As the law stands, those people would be entitled to be registered to vote at the hospital. Amendment No. 80 will have the effect that anyone who is detained is not entitled to be registered to vote anywhere.

4.15 am
Mr. Mike Thomas

I accept that that is the likely impact of the clause. However, surely that cannot be a sensible argument against it. It was an anomaly for those people to have had the vote in the first place. There are not many of them, and it is right that the vote should be taken away from them.

Mr. Davis

I am not sure that it should be taken away from them, because someone may be detained not as a result of his mental capacity or mental illness. The medical director for Broadmoor hospital came to the Committee and gave evidence. He emphasised that the only difference between his detained patients and voluntary mental patients was that one group agreed to enter hospital and the other group would not agree of their own free will and therefore had to be detained. It had nothing at all to do with their illnesses. That was what Dr. Udwin told the Committee. Clearly, it is not the illness which decides whether someone is detained or not.

Mr. Mike Thomasrose—

Mr. Davis

I did not interrupt the hon. Gentleman. If he will let me complete my explanation, I shall willingly give way later. Indeed, he may wish to seek leave to address the House again.

Before I describe the two areas of concern, I wish to draw attention to the fact that amendment No. 80 may take away the vote from some people who have had it in the past, whatever the hon. Gentleman intended. He is satisfied that such people should not have the vote. I am not. As a result of amendment No. 80 detention in a mental hospital will have the same effect as imprisonment.

The first area of concern is a group of practical difficulties. I use that phrase because it was used by the Minister of State, Home Office. He said that there was a practical difficulty in deciding an elector's capacity to vote and that if an electoral registration officer received a list of voluntary mental patients, registered to vote at a hospital, he must know that some patients lack the common law capacity to vote. Therefore, we must have a declaration as a test of capacity to vote.

We do not have a test of capacity for anyone else to be registered to vote in Britain. Anyone can be registered The only test of capacity arises when that person goes to a polling station to vote. The clerk at the polling station can ask a question to the effect "Are you the person whose name appears on the register at this address?" That is the only question that is asked. If the person gives a satisfactory answer to that question, he is permitted to vote. I have checked that with an electoral registration officer who has had frequent requests for advice from parents of those suffering from severe mental illness or handicap. He assured me that he always gives the advice that everybody should be registered. It is not the job of parents to register or not register people according to their judgment of those persons' capacity to vote. That is a matter to be settled on polling day.

It follows that if somebody has a postal vote through RPF7 or RPF8, he would never have to answer that question at a polling station. Nevertheless, it is a fact that no declaration of capacity has to be made by anyone else who is to be registered. We shall now introduce this declaration only for voluntary mental patients in hospitals for the treatment of mental illness.

The schedule, amendment No. 91, also requires a declaration to be attested. There is no provision anywhere in electoral law for a declaration, which is often made by electors about various points, to be attested by anyone else. The question of attestation does not apply to any other elector.

Paragraph 3(1) of the schedule provides: A voluntary mental patient may make a declaration —and therefore be entitled to be registered to vote— if he is able to do so without assistance. The purpose of amendment(a)is to strike out the words if he is able to do so without assistance". Amendment(b)is simply consequential. If those words are struck out, we do not need the reference to those who are blind or who are physically incapacitated in some other way. The hon. Member for Newcastle upon Tyne, East says that it is reasonable to have such a test and that it should be carried out annually. However, it does not apply to other people and others can obtain assistance. There is no question of people in the community not requiring assistance if they intend to register to vote. There is no question of people not needing assistance if they are going to register to vote at an ordinary hospital. There is no question of assistance not being required if someone wishes to register KO vote, even if he is a voluntary mental patient in the psychiatric unit of a general hospital.

The test is unique. The test that a person should riot need assistance will apply only to voluntary mental patients. It is an additional test for them and for them alone. It does not apply to geriatrics who are living in old people's homes, nor should it. The same criterion and test as apply to other groups of electors who need assistance should apply to voluntary mental patients. I can well understand that someone who has lived for many years in a mental hospital will need assistance in completing an electoral registration form. I have recently been involved in collecting postal vote applications in a by-election. Many hon. Members will have found that electors who are not voluntary mental patients are somewhat puzzled and taken aback by the application for a postal vote. To ask us to believe that a voluntary mental patient should be able to complete this declaration without any assistance is to ask too much. It is not unreasonable for a voluntary mental patient to be able to discuss the form with a nurse or someone else at the hospital. For many patients it will be the first time that they have seen an electoral registration form. It is too much to say that they must not have assistance. Yet another obstacle is being put in their way.

The hon. Member for Newcastle upon Tyne, East could not see the point of amendment(c). The point is simple. The provision in paragraph 7(2) of amendment 91 means that an application for a postal vote shall be for "a particular election only". In 1974 there were two general elections. A voluntary mental patient would be required to make two applications for a postal vote. He would be required to make an application for every election. If he wished to vote in a local election he would have to apply for a postal vote in that election. Indeed, the Minister has not made it clear whether he intends to allow postal votes in local elections. However, I expect that he does intend to allow it, because it is possible for those who qualify for a postal vote under the RPF 7 procedure to have a postal vote on medical grounds and that applies to all elections in the course of a year, or even longer. Much depends on the certificate given by the medical practitioner.

The Government say that a voluntary mental patient must apply for a postal vote for every election. It is clear that it is to apply to one election. The same requirement applies, I believe, to voters in the Services, but I question whether that is wise. There is some justification in the case of Service men, because they are likely to move from base to base and camp to camp and sometimes go abroad. They move much more frequently than voluntary mental patients. We are talking about voluntary long-stay mental patients. Let us take the example of a voluntary mental patient who registered in St. Marylebone or one of the Newham constituencies, where by-elections occured between the two elections in 1974. There were three parliamentary elections and probably a local election as well.

However, the Government say that voluntary mental patients should make four applications for postal votes in such a case if they wish to exercise their rights. That does not apply to the physically ill and I do not see why it should apply to voluntary mental patients who happen to be in a hospital rather than elsewhere.

Mr. Mike Thomas

I do not quite understand why the hon. Gentleman believes that someone is trying to do him down or to frustrate the purpose of the House. If, after consulting the political parties and various other people as promised, the Minister gratuitously devised in the regulations a procedure that made it excessively difficult for voluntary patients to complete the form and gain their rights, his criticism would be justified. Why should we a priori assume that that is the Minister's intention? It is presumably not his intention. On the postal vote, I start to understand the hon. Member for Birmingham, Stechford (Mr. Davis) and I shall listen with interest to what the Minister has to say. I wish, however, that the hon. Gentleman would not start from the assumption that the Government, who, it seems to me, have moved substantially on the matter, are trying to do the thing down. It seems to me that the Government are trying in difficult circumstances to get the thing right.

Mr. Davis

We have to believe that the Government mean what they say in what they put before the House of Commons. If the Government do not intend to insist that a voluntary mental patient shall apply for a postal vote for every election, they would not have stated that the application shall be for a particular election only. If the Government had intended that voluntary mental patients should be able to receive assistance in completing the declaration form, they would not have specified that a voluntary mental patient may make a declaration if he is able to do so without assistance. Words must be taken to mean what they say. If the Government say that a voluntary mental patient shall do this only if he can do so without assistance, we are entitled to say that this is an unnecessary restriction and obstacle in the registration of voluntary mental patients.

I have explained my tabling of three amendments which, subject to what the Minister says, we shall wish to press. Another area of concern relates to the reasons for refusing to allow voluntary mental patients to register at the hospitals where they reside. The hon. Member for Newcastle upon Tyne, East must recognise that this was not covered in Committee. I felt it was inherent that voluntary mental patients should register to vote at the hospitals where they reside in the same way that voluntary mental patients can register to vote where they reside in the psychiatric unit of a large general hospital. Great play was made in Committee of the anomaly of voluntary mental patients in psychiatric units in general hospitals being able to register to vote and voluntary mental patients in hospitals intended mainly or wholly for treatment of mental illness being unable to register.

It is clear that our discussion in Committee was concerned with putting these voluntary mental patients on an equal footing. This is not going to happen. Voluntary mental patients who reside in a hospital that is wholly or mainly for the treatment of mental illness will not be able to register at that hospital. They will be required to notify a residence, either a place where they have resided or a place where they would reside if discharged from hospital.

The Minister says that he has introduced this procedure because there is some concern about the size of mental hospitals and about a sudden large increase in the electorate. The Minister says that there is apprehension in some local populations and he is concerned that this apprehension could lead to resentment and fears. I agree with my right hon. Friend the Member for Manchester, Wythenshawe (Mr. Morris) that if substantial numbers of voluntary mental patients registered to vote in some local government wards, it would lead some councillors to become even more interested, responsive and receptive to the interests of those patients.

Mr. Alan Clark

It has been argued that 40,000 voluntary mental patients are eligible. If the hon. Gentleman is concerned with the concept that voting en bloc might lead local councillors to pay more attention to their requirements, what does he think of the idea that all should be independently registered and form a single constituency of voluntary mental patients sending a Member to this House?

Mr. Davis

I would consider that as objectionable as the idea that Service voters should form a single constituency. The numbers of Service voters are substantial. They are dispersed. They are not registered at the camps where they serve. They move between bases frequently. I cannot see the point of all voluntary mental patients being grouped together to form one constituency.

The Minister's point was that if he had sought to overturn the amendment, that would not have been in the spirit of the discussions in the Committee. Hospital patients are registered at a hospital or at a place of residence, if they have a residence. This means that short-stay patients in hospitals are not registered at the hospitals. This should apply to voluntary mental patients as well. Many are admitted to hospital for short periods, and they are still registered at their homes and should still be so. I am sure that the Government do not intend to interfere with that, as it is written into amendment No. 91.

4.30 am

The Opposition are concerned about voluntary mental patients who do not have another home. There is no need for any special provision. Those patients should be able to register at the hospitals where they live, if they wish. The choice should be theirs.

The hon. Member for Abingdon referred to the problem of canvassing, a problem that exists for other hospitals, both those that may have a small number of voluntary mental patients in a psychiatric unit and those that do not. It may also apply in the case of old peoples' homes. The problem is not helped because most candidates would not venture into a hospital or an old people's home unless that was available to all candidates and accepted by everyone, and by the officers in charge of the establishment.

The problem also exists for the staff at mental hospitals. I looked at an electoral register for a ward where there is a significantly large mental hospital. There is a long list of people who are registered at the hospital—they are the staff. The candidates have all the problems in seeking to canvass those electors as they do in canvassing patients.

Under the procedure suggested by the Minister, the register will not show an address if it is a past residence. In other words, someone who is a voluntary mental patient will notify the electoral officer that he used to reside at a place, and will be treated as a Service voter. It is well known that the addresses of Service voters have been removed from the electoral register in recent years, as a result of security difficulties. That presents difficulties for the candidates. Those Service voters do not receive any electoral literature, and although they may apply for a postal vote, they will vote purely on the party label. It is unlikely that they will know the candidates, although they might know the sitting Member, and they do not receive any election literature.

Voluntary mental patients would have the same problem and would be prevented from taking part in the normal processes of an election, such as reading a candidate's views and making up their minds. I believe that that is the intention of the Government. If it is not, we have a different problem.

If we register voluntary mental patients at places where they used to live years ago, there will be the problem described by my right hon. Friend the Member for Manchester, Wythenshawe (Mr. Morris). They will use addresses where other people now live. Unmarried women may suddenly find that someone is registered at their address under a different name, which results in cohabitation queries from the DHSS.

As I understand the Government's suggestions, the address will still be shown if someone says that he would reside at an address if he were not at the hospital. There will be all the problems of having people registered at other people's homes. The Government have not thought through the practical difficulties that will apply if they follow the procedure outlined in amendment No. 91. If the Government are not willing to allow mental patients to register at hospitals, why make the distinction between voluntary and detained patients? The illnesses are often the same, and the Government are depriving some of the detained patients of the vote. They will also deprive some people who have the vote at present because they are not receiving treatment. As a result of the cases of Winwick and Calderstones hospitals, which were described at some length in Committee, some people were registered for the first time. They are not receiving treatment, but they are living at mental hospitals.

It is proposed that a voluntary mental patient would not be entitled to be registered at a hospital, but I have reason to believe that the definition of "patient" is not given. I understand that the interpretation in section 147 of the Mental Health Act 1959 does not apply in this context and it follows that anyone at a mental hospital will be classified as a voluntary mental patient, unless he is detained, in which case he will not register anyway, or he is on the hospital staff. I shall be glad if the Minister tells me that I have misunderstood the point, but my inquiries suggest that that will be the result of the procedure that has been welcomed by the hon. Member for Newcastle upon Tyne, East.

The Minister said that he would consult the political parties—I was delighted to hear that—and about regulations. The point is that he has not yet consulted about the procedure outlined in amendment No. 91. He is asking us to approve the procedure by accepting the amendment and then to discuss the implementation. I will not draw the obvious analogy with the NHS where the Government are also willing to discuss implementation, but not the principles of what they want to do.

There is another issue. The Minister says that amendment No. 91 is designed to achieve general agreement. It does not meet general acceptance from the Opposition, and we believe that voluntary mental patients should have the option of registering at the hospital where they reside

The Minister rightly said that it is a constitutional matter and that the Government would normally take the view that it should go through all stages on the Floor of the House. I agree. I do not regret my vote in Committee in support of the new clause of the hon. Member for Newcastle upon Tyne, East, but it is clear that the details need careful consideration. I suggest that the best procedure would be to accept amendment No. 80, which draws a distinction between detained patients and voluntary mental patients, but to reject amendment No. 91. The Government should bring a short constitutional Bill before the House in the next Session so that we can examine the procedure in the detail that it deserves.

Mr. Mayhew

I am extremely grateful for the detail and care with which hon. Members have addressed the amendment. I hope that I shall not be accused of discourtesy if I deal with the matter briefly and do not go into immaculate detail on every point that has been raised.

I am grateful to the hon. Member for Newcastle upon Tyne, East (Mr. Thomas), my hon. Friend the Member for Abingdon (Mr. Benyon) and the hon. Member for Lewisham, West (Mr. Price) for the welcome, in varying degrees, that they gave to the amendment. I particularly draw attention to the fact that the hon. Member for Newcastle upon Tyne, East said that the amendment represents all that he, the mover of the relevant amendment in Committee, could reasonably have hoped for. He has said that it gives him what he asked for. I believe that I am entitled to rely on that when dealing with the speech of the right hon. Member for Manchester. Wythenshawe (Mr. Morris), which missed the mood of the occasion and certainly did not match the mood of the Committee.

It was hyperbole and unpersuasive of the right hon. Gentleman to suggest that the amendment is deliberately designed to put as many obstacles as possible between a voluntary mental patient and the ballot box and to make the procedure as difficult as possible.

Mr. Alfred Morris

I was quoting there a distinguished representative of Mencap. Will the Minister respond to the argument on that ground?

Mr. Mayhew

If the right hon. Gentleman was simply growing a thistle in order to behead it, he disguised his intention adequately. I believed that he was quoting with approval. I have only to point to the overall effect of the amendment to show what nonsense that right hon. Gentleman was speaking. It was real bosh.

We are erecting here a simple test of competence in the form of a declaration, which I have said we intend to make as simple as possible, setting out the particulars that are described in the schedule. I take the view that there has to be a test of competence if we are to meet the reasonable apprehensions that exist in the community and which the hon. Member for Newcastle upon Tyne, East said certainly existed, and which we were right to take into account. If a person cannot say where he has lived in the past, where his home is, or where he would expect to be when he was discharged, it is my view that most reasonable people would say that he is not mentally capable of voting.

The right hon. Member for Wythenshawe was wrong to say that a large number of people would be disfranchised, because they had no home to go to. That is not the exclusive test. Indeed, it is not the test set out in the schedule. The test is that they should say where they would be if they were not resident at a mental hospital. It may be their home, if they have one. It may be a hostel to which they would expect to be discharged if they were no longer resident at a mental hospital. It may be, as a saver so that no one shall be disfranchised, any address at which they have lived. If they cannot provide any of those particulars, I believe that most people would say that they are not mentally capable of voting properly.

The right hon. Member for Wythenshawe adopted with approval some swingeing criticisms of the Bill and some pretty unflattering suggestions as to our intentions. It comes slightly ill from a right hon. Gentleman who had responsibility as Minister with responsibilities for the disabled in the last Labour Government, a Government who did absolutely nothing to implement the recommendations of the Speaker's Conference. The right hon. Member for Norwich, North (Mr. Ennals) gracefully admitted that his Government did not do that.

The hon. Member for Lewisham, West and others were worried about the phrase if he is able to do so without assistance". A patient will always be able to make a declaration if he is mentally capable. He can be assisted if he needs help because of a physical incapacity—that is blindness, inability to read, or anything of that nature—or if he needs help, for example, to find out the details of his address or to check his nationality status or something of that kind. I agree that there is perhaps a grey area between mental and physical incapacity, and I give the undertaking that we shall consult on ways of making our guidance in this respect as detailed and helpful as possible. However, it is important to have the non-assistance test. If that were removed, as sub-amendment(a)suggests, there would be no test of competence, and I believe that most people wish there to be a test of competence.

Mr. Ennals

Why should there be a test of competence for people who live in one type of hospital, when people who may be suffering from the same mental condition do not have that test, or people who live in the community with the same mental condition do not have that test?

Mr. Mayhew

That is a perfectly fair point. It remains an anomaly in the structure which the schedule will provide. It forms part of the judgment which the Government have had to make of the best way of responding to the reasonable apprehensions in the community, of which the hon. Member for Newcastle upon Tyne, East spoke. I do not say that it is the only solution, the only package that can be provided. I only say that in our judgment, and using our best endeavours to meet the spirit of the amendment, it is the right package and it is what is needed.

The hon. Member for Birmingham, Stechford (Mr. Davis) spoke in great detail, and I respect the care that he has taken. However, he has fallen into error in a number of instances. I shall try briefly, out of respect for the care he took, to deal with the points that he raised. The hon. Gentleman said that we might be denying the vote to those detained in establishments other than mental or psychiatric hospitals or that we might be denying a vote that was available to someone who was already detained. Present law states that a detained patient cannot be registered. If he is detained after registration, he cannot vote in practice, because there is no provision for him to receive a postal ballot.

4.45 am

The hon. Gentleman listed some practical difficulties. He said that there is no test of capacity to vote for anyone else, but that we are creating a test of capacity for the voluntary mental patient. However, one cannot appear on the register if one suffers from a legal incapacity to vote, for example, if one is an idiot or a person of unsound mind. That is the test for registration. If the electoral registration officer puts such a person on the register and his decision is wrong, it can be challenged if necessary in the courts. It is a common law test that is out of date and very difficult to apply, which is why it is supplanted in the proposals.

The hon. Gentleman said that no one else must have his application attested, but that is also wrong, because Service declarations must be attested. Here we are following the existing provisions for Service voters. The hon. Gentleman said that "no assistance" is a condition, but I have already dealt with that.

The hon. Gentleman then referred to voting by post and asked why those people must apply to vote by post as distinct from their annual declaration in respect of each election. Again, it is a matter of judgment. There is no provision in electoral law for postal voters to be sent a reminder when an election comes round. An elector is either on the permanent list of absent voters, for example, because he has a physical disability that prevents him from attending the polling station, or he must apply at each election in which he wishes to vote. However, we cannot assume that patients will be resident at the same hospital when there is an election as they were when the declaration was made, or that they will still be in hospital. Our amendments give the vote to a group of people whom, we are assured, actively wish to exercise it. We can be confident that if they wish to exercise their electoral rights, it will be rare that an opportunity to do so is lost. They can notify the registration officer when they make their declaration that they wish to receive voting papers whenever there is an election during the currency of that registration.

The hon. Gentleman asked whether patients would be entered on the register as "other voters" and without an address, in which case they would not receive literature and would not know the basis on which the election was fought. It will be open to the registration officer to list them as "other voters" and without an address, but it will also be open to the election candidates to ensure that the patients receive election literature, because the registration officer will know the address of the hospital. Each elector is entitled to receive an election address and the problem can be readily solved.

As to the definition of a patient, a voluntary mental patient is defined as a mental hospital patient who is not liable to be detained there by virtue of an enactment. The expression "patient" is not defined and the interpretation in section 147 of the Mental Health Act 1959 is not applied. That ensures that the new arrangements are not limited to patients who are suffering or appearing to suffer from mental disorder. Electoral registration officers and hospital authorities will be advised that a mental hospital resident who is not a detained patient or a member of staff is entitled, subject to the other provisions of the schedule, to make a declaration. I apologise for the length of my reply, but I owe it to the hon. Members who made such interesting points.

We intend to consult political parties, registration officers and health authorities about the best way to draw up guidance for all concerned for dealing with their responsibilities under the regulations. We hope that we shall achieve a balance between electoral entitlement and the interests of the community by ensuring that rights are sensibly conferred.

Amendment agreed to.

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